Rio Zim Murowa Diamonds v Livison Makonye & 16 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 19 SEPTEMBER, 2024 & 20 MARCH
JUDGMENT NO LC/H/125/25 CASE NO LC/H/679/24
---------


IN THE LABOUR COURT OF ZIMBABWE HARARE, 19 SEPTEMBER, 2024 & 20 MARCH

In the matter between: -

RIO ZIM MUROWA DIAMONDS

LIVISON MAKONYE & 16 OTHERS

JUDGMENT NO LC/H/125/25 CASE NO LC/H/679/24

APPELLANT

RESPONDENT

Before the Honourable Kudya J

For the Appellant	W. Diarra ((Legal Practitioner)

For Respondent	T. Marume (Legal Practitioner)

KUDYA, J:

This is an appeal against an arbitral decision by arbitrator Honourable Chenyika made on 27 May 2024 where he ruled that: -

“Claimants be immediately reinstated to their position as plant operators.

Claimants as plant operators be placed back onto the grade 11 scale of the NEC Mining Industry Job evaluation system without loss of salary and benefits with effect from 01 July 2020.

The parties, claimants as represented by ZDAMWU and the respondent are to meet within 14 days of receiving this award, to quantify the financial prejudice suffered by claimants as a result of implementation of the Addendum to the contract of employment backdated to 01 July 2020.

Any party aggrieved by the quantification process or lack thereof may apply to this tribunal for the quantification process.”

This award was given following the appearance before the arbitrator of the claimants who were employed as plant operates in respondent employer’s employment. The dispute arose from the signing of a document by the claimants titled

“Addendum to the contract of employment.”

The addendum bore the following critical terms: -

Clause 2. This addendum is in reference to the principal employment contract between the parties

Clause 4. No other terms or conditions of employment contract shall be negated or changed as a result of this addendum.

It is noteworthy that the principal contract terms provided from the following

Specific job title

Specific NEC grade

Basic monthly salary

The Addendum bore in particular the following clause; -

3.  It is agreed with effect from 01 June 2020 the employee’s net salary shall be the amount of USD 364 payable in United States dollars into the employer’s elected Nostro Account in Zimbabwe. This net salary is based on standard number of overtime hours and other variable allowances where applicable and hence may change month on month based on your variable pay if any. Furthermore, the net is based on the current tax tables as on the date of this addendum and any increase in taxes will be borne by the employee.”

A sample of the main contract between employee Dzore and Murowa Diamonds was used at arbitration. It bore the following particular terms:

Basic Salary and Remuneration

“The remuneration for the position is a basic monthly salary of USD 861 together with	the benefits described in this schedule…	”

A dispute over the implementation of the addendum arose between the employer and the employees. They tried to have it resolved internally without success until they went before the arbitrator who ruled in favour of the employees as already stated above.

The employer is unhappy with the arbitral award hence the appeal which is the subject of this judgment. It filed the following appeal grounds with the court: -

The honourable arbitrator erred at law in finding that the addendum to the principal contract of employment was unilaterally varied as no evidence was led to that effect as required by law

The Honourable Arbitrator erred at law in finding that, an addendum is meant to elaborate or expand some aspects of the principal agreement whereas in fact the purpose of an addendum is to modify alter or totally change some of the terms of the principal agreement.

The honourable arbitrator erred at law when he found that the addendum was void ab initio on the basis that, it varied the employees’ grade from grade 11 to grade 8 when there was no evidence adduced to justify such a conclusion.

In the result, the appellant prayed that the appeal succeeds with costs and that the arbitral award of 27 May 2024 be set aside and be replaced with an order dismissing the claimants’ claim.

In response to the appeal, the respondents filed 3 sets of responses contained in 3 affidavits deposed to by one Livison Makonye. The 1st one stamped 09 July 2024 is an uncommissioned affidavit which cites the parties as Murowa Diamonds and 3 respondents. This one speaks to grounds land 2 of the appeal but digresses in paragraph 6 and 7 to talk about an issue of some attempted theft which issue is not before this court in this appeal. The 2nd one is the one stamped 10 July 2024. This one is a properly commissioned affidavit dated 04 July 2024 and it speaks to the 3 issues raised by the appeal at hand. There is a 3rd response stamped 11 July 2024. The content of this one is similar to that of the 2nd one and similarly commissioned. The net content of the responses can be summarised as such:

Arbitrator never found that the addendum was unilaterally varied but that it varied the conditions previously enjoyed by the employees under the original contracts. The ground is meaningless and meritless as it seeks to attack a finding that was never made by the arbitrator. The ground is also defective as it seeks to attack factual findings without any gross misdirection on the arbitrator’s part.

Arbitrator correctly held that at law the purpose of an addendum is to elaborate or expand some aspects of the principal agreement. Its purpose is not to solely to modify alter or totally change terms of the principal agreement.

Arbitrator correctly held that the addendum was void ab initio as it sought to unilaterally vary employees’ grades from grade 11 to grade 8 which was ultra vires the principal contract. He correctly found the variation to be unlawful as it was never contemplated by the parties when they signed the agreement.

All appeal grounds are totally without merit and do not warrant interference by the appeal court. The arbitral decision is firmly in the facts and law. There is no basis to impugn it. Respondents deny all facts and legal averments where they are inconsistent with the factual and legal averments contained in the response except what is admitted. In the result the respondents prayed that the appeal be dismissed with costs.

On the date of the hearing, parties in their oral addresses first addressed the point in limine that the 1st ground of appeal is improperly before the court as it relates to what the arbitrator never did or said about the addendum. It also does not raise a point of law as required by law.

The appellant’s reaction to that was that it would seek orally to amend the 1st ground of appeal to reflect the correct position. It conceded that ground one as couched in the pleadings was indeed incorrect as it spoke to what arbitrator never did or said. It however classified the error as a typo error which could be cured by an amendment of the same setting out the correct disquiet which it has with the arbitral award. To the end it filed with the court a document which it styled: -

“Notice of amendment”

The amendment seeks to amend appeal ground 1 from stating they following: -

“The honourable arbitrator erred at law in finding that the addendum to the principal contract of employment was unilaterally varied as no evidence was tendered as required at law”

To read: -

“The honourable arbitrator erred at law in finding that the addendum unilaterally varied the principal contract of employment as no evidence was tendered to prove the same.”

In the face of the point in limine on this issue, the appellant applied orally for the said amendment to be effected. The respondents opposed the grant of the amendment on the following grounds:

There is no specific rule of law that allows for an amendment of a defective appeal ground. It should therefore be struck out.

Amendment of an appeal ground goes beyond the rules. It is a question of law. In that regard refer to Section 98 (10) (a) Labour Act Chapter 28:01.

Anything contrary to statute cannot be varied by the court. In that regard See Kunonga v CPCA SC25/17

The court does not have discretion to condone a breach of the law but it has discretion to condone a breach of the rules of court.

Respondents would be prejudiced by the amendment since they filed their response on the basis of the original ground. Appellant has not told the court how it intends to deal with that. In this regard See case of Kenrich builders cited in Liquid vs Doodlesh 2019

91) ZLR 658 (1) which states that court cannot allow an amendment which has the effect of creating a new cause of action.

Orally appellant has not explained how the ground is coached as is.

In the result, the respondents prayed that, the application for an amendment be dismissed and that their point in limine be upheld with the net result that appeal ground one would be struck off.

On the other hand, the appellant maintained that; -

The issue of the amendment is not a question of law but a ventilation of what the real issue between the parties is

Rules excuse noncompliance. There is no point of law issue at all in the sought after amendment.

It is not true that the prayer for amendment was not motivated. In that regard refer to para 3 1.1 of the appellant’s heads of argument and page 89 of the record.

The explanation for the breach is that a typing error occurred on the crafting of ground 1.

If there is any prejudice that can be cured by an order of costs

The cases cited on the question of law are clearly distinguishable. The cited cases relate to appeals from the High Court and not appeals to the Labour Court.

Rule 12 clothes the Labour Court with power to deal with cases in a les formalistic way and the avoidance of the determination of issues based on technicalities. In the result the appellant persisted with its prayer that ground one be amended and that the point in limine in its regards be dismissed.

After hearing parties on the parties on the point in limine, the court and stated that it would rule on the point in limine at the time when it would be ruling on the merits of the appeal.

The decision to defer the ruling on the point in limine left the parties in a quandary of how to address the court on ground 1. The court realised that ground 1 was the pivot of the whole appeal so, to avoid being overly technical, the court granted both parties the chance to address it orally on the ground in both the original and amended state. Resultantly, the court had the benefits of the arguments on the ground as originally crafted and as set out in the intended amendment.

Point in limine and amendment of appeal ground 1

As indicated earlier on in this judgment appellant and the respondents took diametrically opposed positions on how ground 1 of the appeal could be tackled. Appellant prayed that it be amended to reflect the correct issue whilst the respondents was adamant that it be struck off for being bad at law.

The court observed that, striking off the ground would necessitate a condonation application and a readmission of the ground now properly couched. All that it would do is to unnecessarily delay the resolution of the crux of the appeal at stake.

To get around that, the court decided to rely on the authority of Mapondera and 55 Others vs Fredd Rebecca Gold Mine Holdings SC81/22 where Bhunu JA reasoned that, the Labour court should not be overly technical in its disposal of labour matters. It is clear and apparent from the arbitral award that, the finding by the arbitrator was as couched by the intended amended ground. It would therefore be futile for the court to pretend that what the arbitrator found in ground 1 is debatable. It mattered not whether one wants to characterise it

as a drafting error or not. What is stark is the fact that the ground as set out originally does not resonate with what the arbitrator found. No meaningful purpose would be served by engaging with the ground in its original form. In the result the point in limine is dismissed and the amendment of ground 1 is allowed as reflected in the notice of amendment filed of record.

For completeness of record, it need be noted that, at arbitration points in limine vis employees’ representation and prescription were raised and determined by the arbitrator. These were not pleaded in the instant appeal or related to in oral submissions before this court. In the result, the court safely concluded that, they were non issues at time of this appeal deserving no determination by this court. Having put to rest issues of points in limine, the merits of the appeal are addressed below:

Ground 1

As earlier indicated in the disposal of the point in limine and the application for amendment of appeal ground 1, parties did address the court on this ground as it originally was and as amended. Given the fact that the ground as it was does not give the correct position of what the arbitration found, the submissions relating to the ground as ill pleaded having been overtaken by the event of the amendment relief they are rendered academic and do not deserve the court to engage with them.

Ground one is therefore discussed in its amended form. The critical question here is whether or not the finding that the addendum unilaterally varied the principal contracts of employment was properly made by the arbitrator.

The employer says such a finding was improperly made as no evidence was tendered to prove the same. On the other hand, the employees are of the view that, arbitrator correctly found that the addendum unilaterally varied the employment contracts. The employer reasons that the addendum was a valid contract which was properly signed by the employees. It stated that, by signing the addendum the employees chose to be bound by the addendum contents no matter how onerous they were. See Nyika v Moyo HC B 145/10 on the signer beware construct.

In motivation of their position, the employees stated that, parties were not ad-idem if regard is had to the fact that the implementation of the addendum saw them protesting it all the way internally through human resources and the works council up to arbitration. In their view

there was no misdirection on the arbitrator concluding that the addendum unilaterally varied their contracts.

A reading of clauses 2 and 4 of the addendum already cited, shows clearly that, the addendum subjected itself to the main contract yet it was implemented in a manner contrary to its spirit and letter. It need be noted that, the remuneration terms in the main contract were now clearly different from what the addendum contained and thus defeated the essence of the addendum subjecting itself to the main contract.

As stated in the case of Intratrek Zim Pvt Ltd vs Zim Power Company Ltd HC H 440/19 the addendum is not a separate stand alone contract but needs to be read in sync with the provisions of the main contract. In the case at hand, the addend sought to act outside the main contract hence became ultra vires and showed clearly that it was now a unilateral variation of the terms of the contract.

The arbitrator can therefore not be faulted for concluding as he did that the addendum unilaterally varied the contracts. There was no extra evidence needed to demonstrate that fact. A simple juxtaposition of the original contract and the addendum showed clearly that there was now departure from the main contract which was against the spirit of clauses of the addendum. Ground 1 being without foundation should fail.

Ground 2

Appellant says the addendum was a separate contract if regard is had to the fact that the main contract allowed variation of its terms from time to time. As stated in the case of Zimpower vs Intratek SC- 17-23, the addendum should be read as integral part of the main agreement. See also V Amandiz Architects Pvt Ltd and Anor HC-H 657-23. Stemming from the legal exposition of what an addendum is, there is no misdirection on the arbitrator to rule as he did that, the addendum purpose was only meant to elaborate and expound aspects of the main contract. The appeal ground being without merit is dismissed.

Ground 3

Appellant says that, arbitrator wrongfully classed the addendum as void from the onset on account of the fact that, it varied employees’ grades from grade 11 to grade 8. The respondents say that arbitrator was correct to say so because, the reduction in their salaries was

a net impact of the reduction of their grades hence arbitrator could not be faulted to conclude as he did.

Placed side by side, the addendum and the main contract shows that indeed the salary payment terms and amounts were changed and were no longer in sync with the original contract. There was no other evidence needed by the arbitrator to make a finding on this aspect.

It is settled that; appeal courts should not lightly interfere with discretion of a triers of fact. See Nyahondo vs Hokonya and others 1997(2) ZLR457. It is clear that the arbitral decision was sound based on law order fact. This court has no reason to interfere with in it. Ultimately, it is clear that, all appeal grounds are without merit. They should fail.

IT IS ORDERED THAT

Appeal being without merit in its entirety it be and is hereby dismissed with costs.

Coghlan, Welsh & Guest	Appellant’s Legal Practitioners

Marume & Furidzo	Respondent’s Legal Practitioners

LC/H/2024

LC/H/